The petition claims that the R.I. Department of Corrections (DOC) decided to change inmate Robert McKinney’s parole eligibility date two decades after he began serving time on murder and conspiracy charges, and that this change would force him to spend at least three extra years in prison despite a unanimous Parole Board decision made in May 2019 that he is qualified for release from custody now.

The controversy has been generated by the DOC’s unannounced decision to change the way it calculates parole eligibility dates for individuals who are given consecutive sentences for their crimes, and to apply the change retroactively.

State law provides that when a prisoner is serving more than one sentence, “a parole permit may issue whenever he or she has served a term equal to one third (1/3) of the aggregate time which he or she shall be liable to serve under his or her several sentences…” Because McKinney was, under state law, eligible for parole on his life sentence after serving 20 years, and eligible for parole from his consecutive 10-year conspiracy sentence after 3 and 1/3 years, the aggregate sentence he had to serve before parole eligibility was 23 and 1/3 years. When McKinney was sentenced in 1997, RIDOC determined his parole eligibility in accordance with that calculation and informed him that his initial parole eligibility date was April 2019.

However, at some point in the recent past, and without notice to McKinney, RIDOC altered its method of calculating parole eligibility dates. Instead of aggregating consecutive sentences, the DOC now requires inmates to initially meet the parole eligibility date for their first sentence (in McKinney’s case, 20 years) and be “paroled” from that sentence to start serving their consecutive sentence. The person must then wait the requisite parole eligibility period for the second offense (in this case, 3 and 1/3 years) before being considered for actual parole from the ACI. In other words, McKinney now needs to be paroled twice before being eligible for release to the community.

Under the DOC’s revised calculation, McKinney should have first seen the Parole Board in 2016, not 2019, and if “paroled” then, he could have already been serving his second sentence as well. Instead, under the RIDOC’s revised approach, McKinney now must serve 3 and 1/3 more years before becoming eligible for parole from his second sentence.

The habeas corpus petition, filed in R.I. Superior Court by ACLU of Rhode Island cooperating attorneys Lisa Holley and Lynette Labinger, argues that DOC’s action violates a host of constitutional rights and contravenes state law, and asks for his immediate release from custody, subject to the Parole Board’s supervision.

Attorney Holley said today: “This arbitrary change of parole eligibility based on a new DOC interpretation of statute belies restorative justice principles and tenets of discretionary release and most importantly violates inmates’ constitutional rights.”

ACLU cooperating attorney Labinger added: “The DOC’s actions, disregarding decades of interpretation and effectively increasing the sentences that individuals must serve before being eligible for release, have taken place at the same time the state has been promoting criminal justice reform and promoting reductions in the prison population. It not only contravenes the law; it is poor public policy.”